The New Mexico Supreme Court ruled yesterday that a photography studio violated the the New Mexico Human Rights Act (NMHRA) by refusing to photograph a same-sex wedding. Vanessa Willock was told that Elane Photography had a moral objection to her gay wedding and sued under the act, which “prohibits a public accommodation from refusing to offer its services to a person based on that person’s sexual orientation.” The case is the latest in a growing number of such conflicts between religious beliefs and anti-discrimination laws. Because this is an expressive activity, it raises some difficult questions under the first amendment rights of the owners of Elane Photography, Jonathan and Elaine Huguenin. As one justice noted in concurrence, this is “the price of citizenship.” However, there remains the question of the right of citizens not to be forced to express ideas or values with which they disagree. That concern rests on a distinction between an expressive activity like photography and a cab or a movie theater in public accommodation.
The decision is well-written and well-conceived. I particularly like the part of the concurring opinion by Justice Richard C. Bosson, writing in concurrence, where he states that the case “teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.” I happen to agree with that sentiment. However, I remain concerned over the impact on first amendment rights.
The Court made a reasonable distinction between the Huguenin’s conduct as opposed to their beliefs. The law governs conduct in public accommodation. Thus, “in the “world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.”
The New Mexico Human Rights Council ordered Elane Photography to pay Willock $6,637.94 in attorneys fees and costs after finding a violation of the law.
The Court takes on the first amendment issues directly. The Court drew a compelling comparison to the Supreme Court decision against law schools who had refused to permit military recruiters to participate in their recruitment or placement activities:
Elane Photography’s argument here is more analogous to the claims raised by the law schools in Rumsfeld. In that case, a federal law made universities’ federal funding contingent on the universities allowing military recruiters access to university facilities and services on the same basis as other, non-military recruiters. 547 U.S. at 52-53. A group of law schools that objected to the ban on gays in the military challenged the law on a number of constitutional grounds, including that the law in question compelled them to speak the government’s message. Id. at 52, 53, 61-62. In order to assist the military recruiters, schools had to provide services that involved speech, “suchas sending e-mails and distributing flyers.” Id. at 60.The United States Supreme Court held that this requirement did not constitute compelled speech. Id. at 62. The Court observed that the federal law “neither limits what law schools may say nor requires them to say anything.” Id. at 60. Schools were compelled only to provide the type of speech-related services to military recruiters that they provided to non-military recruiters. Id. at 62. “There [was] nothing . . . approaching a Government-mandated pledge or motto that the school [had to] endorse.”
The problem is that a photographer does more than offer a facility. He uses an interpretive skill and art form to frame an event. This is more akin to a writer or painter as an expressive form. Of course, the problem is that many forms of public accommodation could claim expressive components from bakers to tailors. The Court has drawn a line at the government requiring newspapers or publications to carry opposing views. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 244 (1974) (invalidating Florida’s “‘right of reply’” statute);
Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 4, 20-21, 26 (1986) (plurality opinion) (holding unconstitutional an order to allow a third-party group to send out message with a utility’s billing statements). In one such case, Hurley v. Irish- Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) where it ruled that a parade could exclude a gay rights groups rather than force it to include an expressive component in its banner and advocacy.
The Court again draws a compelling distinction:
“Elane Photography does not routinely publish for or display its wedding photographs to the public. Instead, it creates an album for each customer and posts the photographs on a password-protected website for the customers and their friends and family to view. Whatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public.”
Yet, a photographer does not simply produce robotic or reflective images. They interact with subjects of their photos and arrange scenes to capture the essence of an event. For that reason, I was not convinced that photographs of this kind are solely the expression of the couple and not the photographer.
My concern is with the speech as opposed to the association. While the couple argued that third parties could conclude that their pictures show approval of same-sex relationships, the Court correctly notes that “They may . . . post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” Yet, I wonder if such statements could be challenged next as creating a hostile environment.
In the end, I remain torn by this ruling. I see the logic and the precedent for the decision. However, I have lingering discomfort with a required expressive act like photography. It is in my view a close question and I would love to read the thoughts of our blog on the issues. There may be no way to accommodate such expressive rights in a public accommodation law. However, that would require deeply religious businesses to either shutdown or engage in ceremonies that they find morally objectionable. It is a tough call despite my long-standing support for same-sex marriage and gay rights. What do you think?
Here is the opinion: sc33687
I’m outta here.
Darren,
Did you see the posting on the ninth circuit thread about Alice Walton….
David,
“I have attended meetings with other homosexuals . . .”
Freudian slips are really funny.
Darren…. Thanks a bunch…l
Just got that other one David…
You know… You’re probably right…. But couldn’t that work with any organization…. Now, David….did you mean to post the following:
” I have attended meetings with other homosexuals……” Are you telling us something….
AY wrote: “did you mean to post the following: ‘I have attended meetings with other homosexuals…’ Are you telling us something…”
I have been surprised by the uproar from others about this comment. It just goes to show how they continue to follow their bigoted stereotype of me as a homophobe.
I am not a practicing homosexual. I could easily become homosexual if I so chose to be. I related in another post on this blog a personal homosexual experience. With regard to this recent statement, I probably should have worded this better. I should have said, “I have attended meetings with others who were homosexuals…” The meetings I had in mind were actually labeled “Gay Straight Alliance.” Therefore, even as a so-called straight person, I approached this meeting as a comrade with homosexuals, seeking solutions agreeable to all of us. We all are in fact brothers and sisters in a metaphorical sense, being related to each other by our common humanity. I wish society would just dismiss with this class system that people construct of gay / straight, black / white, male / female, etc. No matter how much we try to be blind to the class system society keeps constructing for us, someone is sure to make a mockery of you when you operate that way without regard to class. We really need to evolve into a society who see ourselves as common human beings with the same rights and desires. Sure, we all have differences, and we should not pretend that they are not there, or that these differences do not matter, but we also do not need to let these differences create a polarization such that we do not recognize the common humanity of others. It really all boils down to loving one another (and I mean loving in a non-sexual way… and I hate that I even have to clarify that!).
David,
Do tell… So are you fighting your feminine side and its your Honosexual Agenda…. The truth will set you free….I think you’re being more honest….
AY and David M
I retrieved a post from each of you and everyone can see them above.
David,
“I suppose one situation would be if a mother had a legal abortion and then the father had a funeral or memorial for the unborn child.”
Your answer is not complete. Which you would denigrate at the funeral?
Oh, wait, discerner of wisdom would obviously choose the male.
Oh please release this from moderation someone….please..l
David,
Help me with that…. If the mother had a legal abortion…. You would show up at the funeral or memorial to protest for the unborn child…… is that correct?
Now exactly who would you be protesting against…. Or for….
I know I’ve done some weed in the past… And I have drank to excess on many occasions….I still can’t understand this one…. Do you think I’m in line to be the next homosexual….. I’ve been called a real as$hole before…. But I don’t think I could sink one that’s as big as the crap I’ve read from you….
David,
You remind me the bullies that we all encounter in adolescence — the ones we all have known –the ones that initiate confrontations and then are the first to claim victim when their bluff is called.
Your words define your position, David.
“If I argued from a position of authority, then perhaps your character assassination would be allowable . . .”
Your self-anointed theocratic position of authority has been your argument, David. It’s been your only argument.
gbk wrote: “Your self-anointed theocratic position of authority has been your argument, David. It’s been your only argument.”
I have admitted to a bias toward theism because I believe in God. At the same time, I have clarified that I belong to no religion, nor do I profess adherence to any religious dogma, creed, or Scriptures. How could I possibly be arguing from some “theocratic position of authority”? Such makes no sense whatsoever.
My arguments have rested on citations from Loving v. Virginia, Maynard v. Hill, Skinner v. Oklahoma, and several other court cases. When Gene attempted to win the argument by referring to his superior legal credentials, I referred to my preference for the lawyerly arguments and greater credentials and authority of Oxford Professor John Finnis who basically seems to interpret the law the same way that I do. I have presented scientific evidence from Alfred Kinsey, Alan Bell, Martin Weinberg, Charles Socarides, Frank Joseph, and numerous other researchers. I have quoted from philosophers like John Gonsiorek, James Weinrich, Alan Soble, and numerous others. Clearly, I am in disbelief that you would argue that my so-called “theocratic position of authority” (which is completely non-existent) has been my ONLY argument.
AY,
I prefer Artemis myself.
Sorry…
I suffer from the Athena Agenda….
Well gbk, I was thinking it was part of the Nero Agenda…. I was not thinking about that…. I guess it could be said I suffer from the
AY,
You mean you don’t know yet? It’s a sexual reversal of Oedipus.
Why . . . that’s your own petard you’ve just been hoisted upon there, David!
Tsk, tsk, tsk.
Although gbk gets the points for the assist. 😀
David,
“OS will object that such is impossible, but he is speaking from his ivory tower of supposed higher learning and I am speaking from actual experience in the real world.”
Is this the same real world that allows only you to discern the desires of the members of your household?
Is this the same real world that allows only you to discern mistakes in nature?
Is this the same real world that you feel would be better off if there were intelligence tests for voting?
Is this the same real world where in one post in this thread you claim that it is your concern for public safety that drives you to speak against the homosexual agenda , and yet a mere four hours later you state, “[w]hy would I take such an attitude toward homosexuals whose primary victim of their personal sexual choices is their own self?”
Gene,
I still need help with exactly what is a homosexual agenda…. David hasn’t explained it to the point that I can understand…..
AY wrote: “I still need help with exactly what is a homosexual agenda…”
I have attended meetings with other homosexuals who hashed out their agenda. It usually involves brainstorming ways to get their sexuality more approved and mainstream. They plan outings at local bars to be vocal there and distribute flyers to their group meetings, they plan protests and gay parades, they plan lawsuits, write newspaper articles, they strategize how to get the university to make all bathrooms unisex, they work with housing departments at the university to refer gay curious students only to their organizations and to deter them from organizations that would encourage them to abstain from sex or that might refer them to therapies with which they disagree, they assign people to cruise website blogs to post their viewpoint, to argue on any websites where they can get their message out of approval for non-heterosexual sexual relationships. I could go on, but I know you like short messages so I had better stop.
And your expertise to challenge his expertise is what exactly, software boy?
Are you holding terminal degrees in psychology and/or forensic science? Are you a Daubert certified expert on human psychology suitable for offering expert testimony in court? Are you a published scholar in those fields? Do you have decades of experience as a forensic psychologist or in any other psychology related sub-discipline?
OS is all of those things.
And you do what exactly? Besides act as a bigoted theocratic troll. Sell software?
Or is this just another example like when you pretend to be an expert on law and are really just talking out of your ass?
Oops.
There’s the one and only correct answer.
David wrote:
I have less of a problem protesting funerals for an important cause than I would in joining up with the Westboro Baptists”
~+~
I am curious about which funerals you would consider justified to protest at.
Darren Smith wrote: “I am curious about which funerals you would consider justified to protest at.”
I suppose one situation would be if a mother had a legal abortion and then the father had a funeral or memorial for the unborn child.
“OS will object that such is impossible, but he is speaking from his ivory tower of supposed higher learning and I am speaking from actual experience in the real world.”
Um, no. OS is one of the finest forensic psychologists in the country. He’s not a pretend expert like yourself. He’s an actual subject matter expert on human psychology. Unlike you, software boy.
Gene wrote: “OS is one of the finest forensic psychologists in the country.”
He may be that, but he does not understand human sexuality. Mention a person switching from being heterosexual all his life to being homosexual or vice versa and he goes berserk like the “Lost in Space” robot.